Betwixt The Sheets: The History of Sex, Scandal & Society - Divorce

Episode Date: September 6, 2022

Why would a married couple stage an affair? Was Henry VIII really the beginning of the end for marriages? And how is the divorce process different for men and women?Today Betwixt the Sheets, Kate is joined by Henry Kha, Senior Lecturer at Macquarie University and formerly a legal associate in the Family Court of Australia.Henry has worked on divorces himself, and today shares the story of their development in the UK legal system.*WARNING there are naughty words and discussions of sex in this episode*Produced by Charlotte Long and Sophie Gee. Mixed by Sophie Gee.For more History Hit content, subscribe to our newsletters here.If you'd like to learn even more, we have hundreds of history documentaries, ad-free podcasts, and audiobooks at History Hit - subscribe today!You've been listening to a History Hit podcast. Please take a couple of minutes to fill out this survey with your feedback, we'd really appreciate it.This podcast includes music by Epidemic Sound and an archive clip from the film The Divorcee. Hosted on Acast. See acast.com/privacy for more information.

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Sign up to join me in locations around the world and explore the past. Just visit historyhit.com forward slash subscribe. Hello, my lovely betwixters. It's me, Kate Lister, jumping in, as I am wont to do with your fair do's warning. Fair do's, this episode is going to contain adult themes and naughty words and probably me swearing quite a lot. We're talking about divorce today, the history of divorce.

I don't think this is mega rude. We've definitely had worse, but maybe you just don't fancy listening to an episode about divorce, which is absolutely full. And in that case, you just give this one a swerve and I'll see you later. Does this mean that you're leaving with him? It's rather apparent, don't you think? She saw my wife emerging from the room at about a quarter to nine,

and she saw men come out of the same room after her. I shall see you one day in the divorce court. You'll never see me in the divorce court. Why would a married couple pretend to have an affair? Was Henry VIII really the beginning of the end of marriage? as we know it. And how has the divorce process changed over the centuries, particularly the differences between men and women? Well, today, Betwixt the Sheets, we're going to find out because we are talking about the history of divorce. Oh, and welcome back to Betwixt the Sheets, the history of sex scandal in society. With me, Kate Lester.

One third of marriages in the UK will end in divorce. And rather than being a private affair, the details of famous divorces are often smattered across the pages. of our newspapers all across the internet. You can even see them on TV and on YouTube, like their entertainment. But once upon a time, getting a divorce was the preserve of the super rich. At one point, you actually had to have an act of parliament to get a divorce. Today, I'm joined by Henry Carr, a historian and former family lawyer, to find out about the history of divorce and just how hard it was to get out of a marriage in the past. So hello and welcome to Betwixt the Sheets Henry Carr. How are you?

I'm well, Kate. Thanks for the opportunity. There is no one I'd rather have Betwixt the Sheets with me to talk about this particular subject. That's very kind of you. The history of divorce. It seems like such a fundamental part of our own culture and there is always stories swirling around it about how it's symptomatic of a broken society and isn't it awful? People are getting divorced and it's terrible. To my mind, it's a bloody wonderful thing. Maybe that's just saying more about my standards. Well, divorce is a very interesting subject. It's about human relationships. And as you have rightly pointed out,

unfortunately, it's been part of people's lives for thousands of years. Absolutely. And am I right in thinking that you used to be a lawyer? Yes, I used to practice as a lawyer in Australia. So this is something that you have seen very much on the coal face divorce. Yes. I always. worked for the family court. It's not a happy place to work for as you can imagine. Wow. So you've got a really unique perspective on this as someone that's practiced divorce law and someone that's researching the history of divorce. That's right. And what led you to this? What led you to this research?

Was it the fact that you'd been involved in family courts for so long? Well, I've always been interested in history and my favorite subject at law school was family law. So those interests converged and the history of family law at the heart of it is really at the history of divorce. True. As a result of divorce, people have property and parenting disputes and I was very fascinated about how the law regulates divorce and what that says about society and culture. It's one of those things that you don't really stop and think about all that often. It's just there as divorce, but it opens up a lot of questions, doesn't it? Like, where did it come from? How did it start? What is divorce? The idea that you can just do.

just finds another person and go, right, this is it, this is you and me, we're now in a contractual agreement. And then a few years down the line, you can go, actually, I don't want to be in this agreement anymore. And now lawyers have to be bought in. It is a kind of a mad, it's not mad system, but there's a lot of history there, isn't there? Absolutely. Well, if there is marriage recognised in law, then quite naturally there will be divorce. So marriage was recognized in law to help support family, to support the upbringing of children, and to provide a way for couples to formalise their relationship. And when marriage broke down, divorce was an option, but it has not always been easy to obtain a divorce. And divorce, as we understand it today,

hasn't always existed. Now, what are, we'll go right back as far as you can. What are something like the earliest evidence is that cultures or people had a practice where you go, right, you guys, you no longer married? Well, in the Old Testament, there is rules. Is divorce in the Old Testament? Yes, divorce is certainly in the Old Testament. It's in a small print. It's clearly outlined in the book of Deuteronomy.

So in Jewish law, there was clear procedure in which a party could obtain a divorce. So if a marriage had broken down, so long as. the husband gave his wife a get, which is a divorce certificate, the marriage could be dissolved for whatever reason. Wow. So long as the husband felt that the marriage had broken down and issued the get. I didn't know that. I didn't know it was biblical.

I thought that would have been something that would have been very much, yeah, don't be doing that. But it's not. It's in the Bible. That's right. It is in the Bible. Blow my tiny brains apart. Okay, so it's in Jewish law.

It's in the Old Testament. Do we have other evidence of it? I think of the Code of Hamarabi there is mention of the vors. In Roman law, there is certainly mention of the voss. So it is well known in ancient practice, and it was seen as an appropriate remedy to dissolve marriage. I mean, it makes sense, doesn't it? I mean, was it these largely patriarchal societies, aren't they? I mean, do we have any sort of understanding if it was a fair, equitable division of the assets,

or if kind of women were getting screwed by this? It was based on a patriarchal system in terms of property division that, I guess, depends on each of the cultures. I suppose in the history of English law, there is greater sex discrimination between who gets what as a consequence of divorce that has existed historically.

So the history of English divorce law is quite fascinating because at the start of the Reformation, it wasn't possible to get a divorce as we understand it today. So I think it might be worth starting with a definition of divorce. Yeah, let's do it. So there are two types of divorces that were historically recognised in England. Divorce at Foro, so that's Latin and it refers to a divorce from bed and board. In other words, it referred to a judicial separation.

So it didn't dissolve the bonds of marriage. It simply allowed couples to separate. Now, you might be thinking. this is a bit odd because nowadays if you're not happy you can just simply leave but in the early modern period of england if someone wanted to leave his or her spouse it was necessary to obtain a divorce mens et ferro or a judicial separation because the spouse that remained could sue the other spouse who left for desertion and demand that the spouse returned based on a suit for the restitution of conjugal rights. Oh, hello, right. Okay. That doesn't sound like a happy situation. That's right.

Not a happy situation. No, so you could still, if you were divorced in the early modern period, so this is like sort of the 1500s, 1600s, you could get a divorce that was a recognition that you were no longer sharing bed and bored. And that was basically in place so your partner could no longer say, I have a legal right to have sex. Is that right? So I misunderstood that. The idea of marriage was that both parties had to live with each other. And therefore, each party had conjugal rights over the other, and that may well include sexual relations. Right.

You have to bear in mind that marital rape was not a crime until the 20th century. That is so fucked up, isn't it? Really? That's really messed up. Yeah, absolutely. So it was quite patriarchal, as you have rightly pointed out. So that's the first type of divorce, a judicial separation. The second is known as a divorce of inculog matrimony. So that means a divorce from the bonds of marriage.

Incular matrimony. So this is our modern understanding of divorce. So when we think of divorce today, we think of a dissolution of marriage. It ends the legal contract that the parties have with each other. Now, that only came about from 1670 on. onwards. Okay. So in the first one that you mentioned, where it's that you're no longer recognised as being in bed and bored, does that mean that sort of like in the eyes of God you were still married? Marriage was viewed as a sacrament in the early modern period of

England. It was viewed as indesolable. However, as a result of the Protestant Reformation, the view about marriage had changed. So the Roman Catholic Church position was that marriage is indesolable, that is still their position to this day. Whereas with the Protestant reformers, they believed that marriage was not a sacrament, but simply a civil contract that could be dissolved. So we've got to talk about our friend Henry VIII. Well, I knew this would happen. So the most famous divorce. Were those laws sort of changed because of what he wanted to do, or were the Protestants already, did they already have this idea that marriage could be dissolved? King Henry VIII was actually a staunch Roman Catholic, at least in terms of theology, maybe not so much,

in terms of his allegiance to the Pope. So King Henry VIII was once granted the title of the fender of the faith by the Pope. Now, the reason why King Henry VIII decided to split from Rome and allow the Church of England to be formed as an independent body separate from Rome was because he wanted to separate from his first wife, Catherine of Aragon. Now, technically speaking, King Henry VIII was. seeking an annulment as opposed to a divorce. That's an interesting distinction.

Okay. He was arguing that his marriage to Catherine of Aragon was not valid. Catherine was, in fact, King Henry D.8's deceased brother's wife. So when his brother died, he married Catherine of Aragon. And King Henry D. Aeth argued that the marriage was not valid because in a passage in the book of Leviticus, it states that a man should not marry. his brother's wife and if he does, the relationship will bear no children. And this was an issue that King Henry VIII was facing because he wanted a son to succeed

him on the throne. So as a result, he led the way to split from Rome. And when the Church of England became independent of Rome, the Archbishop of Canterbury allowed him to get an annulment and remarry. I mean, you wouldn't turn him down after he'd done that. would you? So the change was more because King Henry Adiff had opened the floodgates through the Protestant Reformation. So once the Church of England became independent, all the Protestant reformers became very active and they started to change the theology that was taught in England. Was it, it was really difficult to get a, I mean, the king couldn't get a divorce. He struggled to get a divorce. So was it easy to get an annulment?

And on what grounds could you get an annulment if you were unhappy in your marriage? Presumably you can't just say he never does the washing up. And I fancy the guy down the road. Well, that's right. It wasn't easy to get an annulment. The argument had to be made that marriage was never valid to begin with. Okay. And one had to point to the fact that there may have been a relationship involving

prohibited degrees of relationships. So there are certain relationships that weren't recognized as valid marriages. So obviously a person couldn't marry a blood relative. Fair. And for King Henry VIII, he made the argument that he was marrying someone of close affinity in terms of kinship. And therefore he could get the annulment through that means. I mean, it was just shit, wasn't it? He was just desperately trying to knob ambling.

That's what... Or maybe I'm being really harsh on him. Like, maybe he really was theologically torn because he's done this thing. What do you think? I think King Henry D.8 was more motivated by political issues rather than theological issues. He was interested in getting a successor and perhaps he was interested in getting a new wife as well. He wasn't thinking very deeply about the theology of marriage and divorce. No, he wasn't.

Anonement's still common today. Did you deal with annulments when you were working in family law? Well, a marriage can be declared void if there has been duress or egregious or if the formal requirements of a marriage haven't been established or there are prohibited degrees of relationship in the marriage. Did you ever encounter that when you were divorced? Did anybody turn up and go off accidentally married my brother? No.

So we've got a situation where divorces, we recognise it, is coming in in the Reformation, the early modern period. But it's not true to say that this meant it was accessible to everybody. So although it's kind of on the cards now, as if you're a Protestant, you can do this, was it accessible to normal people and what were the processes around it? That's a very interesting question. So it's worth trying to understand the Church of England because marriage and divorce were heavily influenced by the teachings of the church. So even though during the Protestant Reformation, there was acceptance that marriage could be dissolved, that it was a civil contract. The English were a little bit slow in adopting all of the teachings of the Reformation. Sounds like us. They tried to go through a middle position. So there are two views.

The Catholic view is that marriage is indissolable because it's a holy sacrament. And the Protestant Reformation view is that marriage is a civil contract and can be dissolved. The English view was that marriage can be dissolved but not for the common man. Oh, well done, England. Yeah, that sounds like something we would come up with. Right. Okay. So divorce is okay, but not for the plebs.

Basically, so if you look at the history of divorce in the 17th and 18th century, only men were successful in petitioning for divorce. The average number of divorce petitions between 1700 and 1800 was 2.3 per year. So there were basically two or three divorces each year. Shit. No, two or three divorces per year. Obviously, that doesn't mean that England was the source of marital bliss. It meant that it was very difficult to obtain a divorce.

And the reason why it was so difficult to obtain divorce was because England had a tripartite system. So there were three stages to obtain a full divorce. The first was to sue the wife's paramour in the Assizes for criminal consequences. So criminal conversation was a lawsuit where the husband was trying to sue the wife's paramel or adulterous partner for damages for the loss of consortium veto or the life of the relationship. Oh, okay. So the two a year, would it largely be around the wife cheating that she's been having it away with someone? And then the husband sues. Yes. The only ground for divorce was adultery. That was it. That was absolutely nothing else. That's right. And that's based on the Christian. and understanding of the New Testament. So there is a passage in the Gospels where Jesus is asked about

divorce and Jesus says that divorce is basically impermissible unless there is sexual immorality and that was interpreted to mean adultery by the English. So the first was the husband suing the wife's paramour for damages in the assizes by initiating a suit for criminal conversation. The second was to apply for a divorce, immense a furrow in the ecclesiastical courts to allow the judicial separation. And the third step was to get a private act of parliament passed by the House of Lords. No. I understand why there was two divorces a year. You have to successfully sue, I assume, for criminal conversation.

Correct. So that has to be got through. Then you have to go, was it to the ecclesiastical courts and have them, say okay and then you have to go to the House of Lords in Westminster and get them to talk about this and say it's okay. That's correct. So you can imagine why divorce was very low in the 18th century. Now I want to know who was getting divorced in the 18th century and what situations had to happen for someone to go, yeah, all right, we'll do it this way. That's intense. As you can imagine, Given the enormous challenges in getting divorce, it was the privilege of the rich and the aristocracy who could obtain a divorce.

How much money would that have cost to do that? So it was £700 in the 18th and early 19th century. I'm not sure what that is in modern figures, but it was a lot of money. I mean, it's way out of the reach of your regular plebs, isn't it? That's right. was out of wretch for the common man, as I said. Yeah. And also it's quite humiliating that, isn't it?

I mean, divorce today, any kind of separation is it's painful and emotional and embarrassing. But the publicness of that, that you'd have to go to the House of Lords and have these people put your marriage under a microscope and whether or not your missus was shagging someone else. I mean, that sounds wild to me. Yeah, it was a spectacle. And it was a spectacle that couples who had to go through this, process had to endure.

I mean, the only thing I could say about that is they must really have wanted to get out of that marriage. Yes. And I do know that the transcripts of the divorce courts were published as basically soft porn. And you can get these kind of erotic manuscripts of criminal conversations. I don't know whether or not the suit was successful, but they function. And there has been arguments made that when women were put on the stand because the husband

was suing, that the lawyers would go into lured. detail because it would then be written down in these books, which was very profitable. Yes, the divorce trials were very sensational, particularly those involving the celebrities of the day, and that would be prime ministers, royalty, aristocrats. I would love to say, isn't it awful, we don't do that anymore, but I've just remembered I spent the entire week glued to the Amber, her Johnny Depp trial, which is exactly the same thing, isn't it? Is it very private but lives being aired in public and we're all gawking at it. Yes, well, there was an infamous case in the early 19th century involving Lord Melbourne,

who was prime minister at the time. And the allegation was that he was having an affair with Caroline Norton. George Norton, who was Caroline's husband, initiated the petition for divorce. And during the trial, allegedly the dirty linen of Caroline Norton was paraded before the jury as evidence. Literally. That's right. I thought that was a metaphor.

Oh my God, they got a knickers out in court. That's correct. The suit was ultimately unsuccessful because it was viewed that George Norton wanted to sue the Prime Minister so that he could receive quite a handsome amount of damages and there are also political implications given the fact that Lord Melbourne was Prime Minister

and he was going up for election. So the jury swiftly dismissed the charges. Wow. But I mean, even if they dismissed it, to have to go through that is really, that's humiliating stuff, isn't it? So there was a double standard. Lord Melbourne's reputation was immediately rehabilitated, whereas Caroline Norton's reputation suffered and she continued to suffer public shame for the rest of her life as a result of the case. That's so crap. Tell me some other famous divorce cases from around this time. See, listen, now I'm gawking. Now I'm being like, I want the details. I want the details. I want the details. There was the trial of Queen Caroline involving King George,

and they were separated for many years. Caroline left England, and she moved to Italy, and King George wanted a divorce. So when he became coronated, Caroline returned back to England so that she could become his queen. The king wasn't happy with that, so he petitioned for divorce. And the trial was interesting because it was heard in the house. of Lords and in the House of Lords trial the allegation was that Caroline was having an affair

with an Italian man and the evidence that was presented was that Caroline was on this pleasure cruise in Italy and that they had an adulterous relationship. However, the divorce petition was unsuccessful. While there was a lot of innuendo that Caroline probably committed adultery in the many years of separation, there wasn't enough hard evidence to specifically point to an event of adultery. Wow. And if I remember this correctly, this is George VIII, and he was shagging anything that moved. So why he thinks he's in the position to be throwing around these kind of accusations? Well, there was a double standard. And if you look at the history of the kings of England. Many of kings had mistresses and they were allowed to get away with it because of

their power. A woman could petition for divorce if the husband committed adultery, but there are practical reasons why that was difficult in the 18th century. I kind of hope Caroline was having an affair. She probably was. Good. I hope she went to Italy and got some for herself. That's my hope happened there. I'll be back with her. after this short break. All this month on Gone Medieval from History Hit, I'll be asking who really were the Vikings? How did they become so successful in spreading across Northern Europe and beyond

from the late 8th to the 11th centuries? What are the stories we tell about them and what legacy do they leave behind for us today? I'm Dr Kat Jarman and throughout September I'll be examining the big questions about the Vikings with a host of experts and answering all of your burning questions about the Viking age as well. So for everything you always wanted to know about the Vikings, subscribe to Gone Medieval from History Hit, wherever you get your podcasts. So divorced in the 18th century is the, like we're talking royalty and aristocracy,

prohibitively expensive, it's very public, it's a spectacle, it ruins reputations, women's reputations. When does this start to shift or change? So the shift occurs in the mid-19th century. An act called the Matrimonial Causes Act of 1857 was passed to allow civil divorce. So in other words, a statute was passed with the grounds for divorce and anyone who could satisfy the grounds for divorce and plead their case before a trial and typically before a jury, they would be able to obtain a divorce.

Now, the shift occurred because of the demise of the ecclesiastical courts. So as I mentioned earlier, marriage and divorce was viewed as moral issues and that attracted the attention of ecclesiastical law. So as part of that process, prior to 1857, petitioner would have to go to the ecclesiastical courts to obtain a judicial separation. The ecclesiastical courts were criticized during the early 19th century because there was a move to a more professional legal system. The courts of law and equity provided a better quality of justice. The quality of lawyers were better. The ecclesiastical courts were seen as old-fashioned. Charles Dickens described one of the ecclesiastical institutions as old-fashioned, doctor's commons. So the

ecclesiastical jurisdiction over marriage and divorce was gradually removed. And as a part of divorce law reform in the mid-19th century, divorce law jurisdiction moved from the ecclesiastical courts to the then newly established court for divorce and matrimonial causes. Was it any easier for women to get divorced after this act was passed? It was significantly easier for women to get divorced, despite the double standard in pleading the grounds for divorce. So in order to obtain a divorce under the Matrimonial Causes Act of 1857, a husband simply had to prove the adultery of the wife. However, the wife had to prove not only the adultery of the husband, but also another ground. This is known as an aggravated

enormity. Right. And this included the grounds of incest, bigamy, rape, solemnity, cruelty and desertion of at least two years. So she had to prove that he'd been having it away someone else and at least one of those things. It's just such a shit system. Right. Okay. So did that mean that more people were getting divorced after 1857 or is it still very expensive to do it? It is a significant improvement, but despite the legal change, it doesn't mean that anyone could get a divorce. It was still an expensive process, but nowhere near as expensive as a system prior to 1857. So in the 18th century, the average number of divorces per year were 2.3. It went up to 3.3 per year between 1800 and 1857.

And in the 18th century, no women were successful in petitioning for divorce. And in the first half of the 19th century, only four women in the 57 years were able to successfully petition for a divorce. a divorce. For women. Wow. Who were they and what had happened to them? There's not much detail about their backgrounds, but basically they were able to establish that the husband had committed adultery and they had the financial means to obtain a divorce and therefore were successful. So if in 1857 as a woman you had successfully managed to get a divorce from your husband on the ground that not only was he shagging someone else, but he was, I don't know what was there, incest, bigamy, take your pick, a one of them.

Now, does that mean that the divorce system afterwards was fair? Does that mean that there was, like, there was today in family court that they go over the assets and there's an equitable division, blah, blah, blah. I mean, it's one thing to get a divorce, isn't it? But what's on the other side of that? The simple answer is, no, of course, there would not be an equal outcome with a system such as that. So if the wife was proven to have committed adultery, that would affect. her chances of obtaining custody of children.

Wow, okay. In terms of property, you have to bear in mind that up until 1882, married women did not have a separate legal personality. Right. So what that means is that married woman came under the headship of the husband, and the husband was viewed as the sole legal personality of the relationship. This is known as a doctrine of curvature, and it is, again, based on Christian principles, married women could not legally own property in their own name.

It would come under the husband's name. Was there any sort of sense that there would be an annuity paid or that you would get some money if you managed to divorce your husband or you were divorced? Were you just out in your ear? Well, the wife could apply for alimony to be financially supported. So there was also the obligation on the husband to continue to provide. provide for the wife. Bear in mind that most women in the 19th century were in homemaker roles. In the 19th century, a lot of professions barred women from employment. So women were in a very financially vulnerable situation and they would be highly dependent on their husbands for financial

support. And that's where the idea of all the money comes from, I suppose, isn't it? It's from originally that women really couldn't earn their own money. So they need to be supporting them after the divorce as well? That's right. So it provides maintenance to the wife. And it also is based on the idea that these sort of matters should be privatised. And it's up to the couple to manage their finances as opposed to the state. Okay. So where are we up to, sort of between 1857 and now, were there other significant shifts in law reform to make divorces? I mean, they're not easy to get. are there, you can't just fill out a form and away you go, but simpler. So there were a few significant legal changes that occurred in the 20th century to mitigate

some of the injustices of the 19th century divorce law. As I mentioned, there was a double standard in applying for divorce. So in 1923, an amendment was passed that allowed the wife to simply petition for divorce. on the husband's adultery alone without proving the other additional grounds 1923 ladies it took that long what other change in the minute has it always had to be with adultery with a changes made that it could just be I don't know bad behaviour irreconcilable differences so between 1857 and 1937 the only ground for divorce was adultery however the matrimonial causes act of 1937 was passed and it allowed other grounds for divorce.

This included adultery, desertion of at least three years, cruelty, and being of unsound mind. I'm going to think of a few of them that I've dated. Okay, that's an interesting shift. I mean, divorce is really difficult, isn't it? And there is still a certain spectacle around it when it comes to famous people, isn't there? We kind of want all the juicy details. As someone that studies the history of divorce and someone that's also practiced divorce law. Do you think that there's still a bias in divorces around men? Or occasionally I hear

that divorce settlements favour women automatically. What's your thoughts on that? I would say that compared to the history, there has been significant shifts to equality and the promotion of justice. So divorce as a legal issue itself is not commonly the source of tension. The source of the spirit will be in regards to parenting of the children and family property matters. So I would describe this shift as a change from regulation where the state was obsessed about upholding certain moral standards to regularization, where nowadays in England, it's a simple process of filling an application form, paying the costs and getting a double. divorce. So in 2020, legislation was passed that changed the old fault-based system of divorce. So a divorce

would now be granted in England six months after the submission of the application form. And that's it. You just simply have to apply for divorce and you can do that unilaterally nowadays. So I should probably speak about the changes in the 20th century because the law shifted from a fault-based system, to a no-fault system. And in England, the history of divorce law can be described as one of piecemeal reform. So gradual changes rather than a revolutionary change in one go. So that's why the English have been a little bit slow in divorce law reform, but they got there in the end. Until 2020.

At each stage of the historical development of divorce, there have always been tensions. So in the 18th century, it was basically a privilege that was restricted to the wealthy and the aristocracy. In the 19th century, there was a shift which allowed divorce to be accessible to ordinary citizens. In the 20th century, there was frustration with the fault-based system, as you can imagine. If the only ground is adultery, then don't be surprised that certain couples will stage adulterous events

or actually commit adultery. Now, if the petitioner committed adultery him or herself, that could be a bar to divorce, which is somewhat ironic because if both parties had committed adultery, then neither party could petition for divorce. because if you want to apply for divorce, you have to come with clean hands.

That is, right, okay, so the only way you can get divorce is through adultery, but if you commit the adultery, you can't petition for the divorce. That's correct, because it would be morally hypocritical to allow a petitioner who has committed adultery to apply for divorce. I can see why you'd give that a go, though, if that was your only option. So collusion was a significant issue in the operation of the divorce law. It's one thing to have the grounds for divorce in statute books. It's another thing to actually implement the law.

So a practice emerged known as hotel divorces. It's well described in even wars a handful of dust and other popular literature of the time. And what would happen, typically the husband would book a hotel and he would be seen by private investigators having a relationship with a, another woman, and that would be tended as evidence to prove that one of the parties had committed adultery and death. But it was all staged. That was the issue, because if parties really wanted to get a divorce, the law really cannot stop them.

People have always tried to manipulate or go around the law, and divorce law was no exception. Interestingly, one of the few things that couples could agree on was on the divorce. and therefore collusion became a serious issue in the operation of the law. Wow. I'd never even thought of that, but of course that's going to happen. If that's the only way that you can prove this, then yeah, you'd stage it, wouldn't you? Absolutely. I'd never heard of that before, but that makes perfect sense. But we don't do that.

No one has to do that now because now we've got no fault divorce. That's right. So after the 1937 amendment, there was still some frustration with the divorce law. As you can imagine, the grounds for divorce were still very narrow. So in the 1960s, there is further agitation for greater divorce law reform and there is division among politicians and those in society about what the new divorce law should look like. So there were a group of people who believed that divorce should be based on fault grounds to preserve the sanctity of marriage. And then there were another group who believed that divorce should be

based on no fault grounds. And a compromise was struck. Okay. And the divorce reform act of 1969 was passed. And there were five grounds for divorce under that act. Well, I should clarify, the only ground for divorce under the act was the irretrievable breakdown of marriage. But there were five facts that a party could choose from in order to prove that the marriage had been irretrievably broken. And the five facts include adultery, unreasonable behaviour, desertion of at least two years, separation with the consent of both parties, where separation has been two years or more, and separation without the consent of the other spouse where separation is five years or more. All right, okay, so you've got some wiggle room.

there. No one's having to set up an adulterous situation, I suppose. So the Divorce Act is a little bit confused because it's trying to achieve two contradictory things. On the one hand, it's trying to preserve the idea of fault-based divorce by having adultery listed as one of the facts for divorce. On the other hand, it's trying to promote no-fault divorce by having separation grounds in the statute. Yeah. So that leads to tension in the law and it ultimately led to no-fault divorce winning out at the end of the day and the introduction of a full no-fault divorce system. As a result, the 2020 act that came into effect this year. Look at that. Look how current that is. I suppose I can kind of see why people are really difficult about it because they don't want to make divorce too easy because it's still caught up with this idea about morality and the breakdown of society. and maybe you shouldn't just be able to just tick a box and then that's it, but it's taken until 2022 to get that here.

And I would love to keep talking to you forever and ever, but I'm going to have to release you. My final question would be, what do you see is the future of divorce, and are there changes that you would still like to be amended? I think now that there is a no-fault system of divorce in England, divorce law isn't going to be a hotly contested issue. A divorce can be initiated unilaterally by one party, even if the other party does not agree,

or if both parties agree, they can both sign the divorce application form and jointly divorce. So in this space of family law, the future area of contention won't be in divorce, but how the court deals with the more significant areas of parenting matters and property disputes. Okay. because that has a more significant effect on the consequences of the party's lives after they divorce, rather than debating the divorce itself. That makes perfect sense. And I suppose we should be grateful now that nobody has to stage an adulterous relationship in a hotel room,

although there will be people listening going, oh, it sounded like a really good idea. I had that for a second there. Well, I think it's great that the law has moved away from collusion. illusion, hotel divorces, private detectives, stalking couples, going through people's rubbish, peeping through keyholes. This is true. I'm just thinking about hiring some young male model to help me out with this one. But no, you're completely right.

It's absolute nonsense. Oh, Henry, you've been so amazing to talk to. Thank you so much for giving me your time and your knowledge today. You're welcome. It was delightful speaking about divorce history with you. You've been amazing. Thank you. Thank you for listening and thank you so much to Henry for coming on the show.

If you like what you've heard, please don't forget to like, review and subscribe wherever it is that you get your podcasts. Join me again Betwixt the Sheets, the History of Sex, Scandal and Society. A podcast by History Hit.